De-Briefed 

The push for an elected attorney general

The push for an elected attorney general

Either the authors of Tennessee’s state constitution were uniquely naive, or they were uniquely brilliant. When they created the roadmap for our statehood, they included one detail that was not to be found anywhere else. They decided that Tennessee’s attorney general, the state’s chief lawyer, the litigant of the people, should be appointed by the state’s highest court. The Tennessee attorney general, the drafters of the constitution decided, would be chosen by five distinctly qualified jurists, the members of the state Supreme Court.

Tennessee was blazing a new trail. Across the nation, some state Constitutions had decreed that the attorney of the people should be elected by the people themselves, just as state legislators and members of Congress were to be elected by the people they represented. In other states it had been decided that the highest-ranking official—the governor—should select the attorney general.

As things stand today, 43 states elect their attorneys general, and five states allow for them to be selected by gubernatorial appointment. Only one state—Tennessee—provides for its attorney general to be appointed by the state Supreme Court. The one remaining state, Maine, chooses its attorney general by a secret ballot of the state Legislature.

Critics of the Tennessee process point out that, given the nature of Tennessee politics, our state hasn’t had a Republican attorney general in modern history, if ever. For that reason, among others, some Republicans are resurrecting a proposal that would change the way Tennessee selects its attorneys general.

Leading the campaign for a popularly elected state attorney general is Knoxville Mayor Victor Ashe, a Republican. “I’m suggesting the Legislature consider creating a new office in Tennessee called the People’s Attorney,” says Ashe, who first began carrying the “for the people, by the people” banner during the 1970s, when he served as a member of the state Legislature. He hasn’t stopped waving that banner since.

A matter of opinions

Overwhelmingly, Democrats in the state Legislature and across the state oppose the idea of an elected attorney general. Fans of the current system say that it allows a uniquely healthy freedom for the attorney general, allowing him to issue opinions with an independence that wouldn’t otherwise exist. An elected attorney general, they suggest, might balk at issuing controversial opinions that might threaten his chances for re-election.

To support their argument, they point to the case of Supreme Court Justice Penny White, whom voters rejected in her retention election last August. Appointed by former Gov. Ned McWherter to fill an unexpired term, White, the only woman on the court—and the court’s youngest judge—had to find a new career after voters were persuaded by the negative campaign that was waged against her.

Victims’ advocates and right-wing groups publicly characterized White as an opponent of the death penalty; they charged that she refused to uphold the law of the land because of her personal feelings about the question of capital punishment.

Whether or not the allegations were true, White’s opponents won and she lost. Her defeat raised the sobering, and understandable, question as to how White’s former colleagues on the court will be affected, especially as they see their own re-election campaigns approaching in 1998.

At the very least, White’s ordeal has made the state Supreme Court more publicity-conscious. It would be impossible to prove that the court has changed the way it interprets the statutes of the state, but it has started issuing press releases about cases in which death penalty sentences have been upheld or in which criminals have received other sorts of tough retribution.

The case of Penny White notwithstanding, opponents of the Ashe plan insist that Tennessee’s current system minimizes the politicization of the attorney general’s office. As a result, they say, the people appointed to the post tend to be serious attorneys rather than simply politically ambitious types who want to use the office as a stepping stone.

Traditionally in other states, the job of attorney general has been widely recognized as a training ground and a last pit stop on the way to higher office. The national magazine Governing recently pointed out that the nickname for the national organization for attorneys general used to be, and probably still is, the “National Association of Aspiring Governors.”

Attorneys general haven’t had much luck in popular elections over the past decade, but that’s a recent development. In 1985, 10 of the country’s 50 governors were former attorneys general. Of those, two went on to be elected to the U.S. Senate and another pair went to the House. The most successful of the class, Bill Clinton, was attorney general at the tender age of 30; he became governor two years later.

Ashe pooh-poohs the argument that his plan would automatically put Tennessee in the same boat with other states where attorneys general have plodded through their jobs while waiting for the chance to run for governor.

“What’s to prevent the current attorney general from running for office?” Ashe fires back.

Law schooled

At the heart of Ashe’s proposal, which he hopes will be sponsored sometime after the 100th General Assembly opens next week, is a plan to strip away the authority of the constitutionally mandated office of attorney general. Instead, Ashe would create a popularly elected “people’s attorney,” who would be given the powers currently held by the attorney general.

As a result, the attorney general would be left with no decision-making power. Instead, he would merely function as the state’s “reporter,” keeping track of the Tennessee Supreme Court’s opinions. In terms of influence and power, the job would be virtually meaningless.

Charles Burson, Tennessee’s current attorney general, is a highly regarded lawyer and a Democrat. He opposes the idea of electing the state’s lawyer, but he says his stance is not motivated by self-preservation. Burson has already announced his resignation, effective next month.

“The idea that you would give birth to a new chief legal officer of the state by doing an end run around the constitution is not worthy of the fine record Victor Ashe has compiled as mayor of Knoxville,” Burson recently wrote in a response to Ashe’s proposal.

“I would suggest that if Mayor Ashe and perhaps others are going to advance this or similar propositions they correctly update the information upon which it was originally premised,” Burson wrote. According to Burson, “much of the controversy surrounding the selection of the attorney general when Mayor Ashe was a legislator was centered on the powerful role of the attorney general as a member of the State Building Commission.” But Burson also points out that the attorney general has not been a member of the State Building Commission since 1982. The attorney general now sits on only two standing committees—the Code Commission and the Judicial Council, “hardly assignments from which any political agenda could be shaped,” Burson says.

State Rep. Randy Stamps, a Republican from Hendersonville, has jumped on the Ashe-proposal bandwagon and may sponsor legislation this session to strip away the power of the current post of attorney general.

And at least one Democrat has publicly said he’s thinking about supporting the idea. Knoxville Rep. Wayne Ritchie, who is popular with both Democrats and Republicans, may join Stamps in sponsoring the legislation.

Stamps has argued that the current method of selection by the state Supreme Court somehow leaves the attorney general’s performance vulnerable to pressure from the high court.

Burson blows holes in that argument:

“Given the way the office is constituted, this notion is totally without merit,” Burson says in his written response. “Once the Supreme Court makes the appointment it has no supervisory or budgetary authority over the attorney general.”

During his own tenure, Burson says, the state attorney’s office has not knuckled under to the court. “We have appealed decisions of the Tennessee Supreme Court to the United States Supreme Court,” he writes. “We have filed appropriate petitions to have the court rehear matters when we felt they erred.”

Bench pressed

If the legislation proposed by Ashe and Stamps is to carry any weight in the General Assembly, it will have to have the support of Gov. Don Sundquist, a Republican who already faces a rocky legislative session as a result of the GOP’s tough tactics in the November election. Unfortunately for Ashe and Stamps, a push for an elected attorney general is not at the top of Sundquist’s legislative “to do” list.

“It’s not at the forefront of our agenda,” says former Sundquist legal counsel Hardy Mays, who now serves as deputy governor. “We’ve had a good relationship with the present attorney general. That situation has worked over the years.”

Mays does leave some room for inferences that the governor might lend some support, however lukewarm, to the proposal. “I think the governor doesn’t have a problem with having an elected official,” Mays says. “But we’d have to look at it. I’d have to see the legislation.”

Most legislators in this year’s Democrat-controlled General Assembly would probably come to the conclusion that the current system of selecting the state’s top legal officer is the fairest, safest and most independent way to get the job done. But Ashe thinks that could change.

If state Supreme Court justices Lyle Reid and A.A. Birch, both Democrats who Republicans have said they’ll target, are rejected by the voters the same way Penny White was rejected last year, conservatives could join the ranks of the Supreme Court in 1998. There is also the possibility that Justice Frank Drowota may be appointed to the federal bench. If that happens, there is a chance that Tennessee would have a majority conservative Supreme Court—the sort of court that could appoint a conservative attorney general.

If that happens, Ashe suggests, even the Democrats might begin to see the merits of his plan: “They might start to say, ‘Wouldn’t it be better to just let the people decide?’ ”

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